ENTERPRISE

Don't Just Free John Thoburn, Vindicate Him

The government of the Washington, D.C. suburb of Fairfax County,
Virginia, opened a golf complex a few years back, not far from the
private Reston golf driving range owned by 43-year-old native John
Thoburn.

Thoburn says the tax-funded facility took away one third of his
business.

But what he -- and columnists for The Washington Post -- find more
interesting are the standards which county officials have applied to
their own facility, and how they differ from the rigorous zoning
regulations enforced against Thoburn.

"To get my occupancy permit," Thoburn wrote in a guest column in the
Post March 15, "I planted over 700 trees around the range at a cost
of $125,000 in 1994. But now Fairfax County demands that 98 trees be
moved to different locations, despite prior inspections and
approvals. Moving the trees provides no public benefit but would
waste thousands of dollars and damage the trees. ...

"The berm [separating Thoburn's facility from the busy Dulles Toll
Road] is a Catch-22. Two contradictory zoning conditions require two
different heights. ... Fairfax County still refuses to say which berm
height they want. And they still haven't told me exactly which trees
are in the wrong location and need to be moved. ..."

Although he is charged with not completing the berm as required,
"Anyone who drives the Dulles Toll Road can see the finished berm,
which has been completed for over as year," Thoburn writes.

"This zoning harassment has been going on for years. One zoning
regulation ... allows a 'snack food concession.' Yet Fairfax County
issued a zoning violation for selling hot dogs and Cokes. They say we
can sell pre-wrapped roast beef deli sandwiches, but not microwave
hot dogs. We can sell Coca-Cola in a bottle or can, but not in a cup.
Meanwhile my competitors, the Fairfax County golf facilities, have
carte blanche from the county to sell beer and pizza."

Post Metro columnist Marc Fisher picks up the tale: When "the county
a couple of years ago opened its own golf complex not too far from
the Thoburn range, the county did not require itself to plant
hundreds of trees or build massive berms, and the county did permit
itself to offer putting greens and miniature golf, neither of which
Thoburn is allowed to offer."

When Thoburn last year balked at spending another $30,000 to move 98
trees which the county says are in the wrong location, he was ordered
to close. He refused, was taken to court, held in contempt, and "put
away until he sees the light and repents and shuts his business, or
plants the trees," columnist Fisher reported on March 22.

That's right: Golf park owner John Thoburn, a "family man with strong
faith, an economics degree and no criminal record" has been sitting
in the Fairfax County Jail for six weeks now for refusing to move his
trees.

The other inmates call Thoburn "Shrub," in acknowledgement of the
nature and seriousness of his offense, columnist Fisher reports. He
hasn't seen his kids since January (his wife and sons moved to Texas
when the county threatened to throw Mrs. Thoburn in jail, too).

The county has jailed him and is continuing to assess him fines of
$1,000 per day "for operating a legal business on my own property,"
Thoburn wrote to the Post on March 15. "So much for trying to live
the American Dream of being a small business owner."

"Property rights are human rights," the inmate continued. "Fairfax
County's own George Mason wrote the Virginia Declaration of Rights,
adopted in 1776. It guarantees Virginians 'certain inherent rights,'
including 'the means of acquiring and possessing property.' ... If I
can be jailed for not moving trees, do I really possess my property?
There are many ways to take away property rights. My three children
are part Cherokee Indian. Their ancestors were forcibly removed from
their property on the Trail of Tears. Have we really learned anything
in America?"

"I have 800 years of law on my side," Thoburn told Fisher of the
Post. "The Magna Carta says fines must be proportional to the
offense. Is incarceration proportional to not moving some trees? If
they say I can't sell Coke from a cup but only from a can, or I can't
have a jukebox, or I've got to move a tree 10 feet, then I don't own
that property anymore."

Foolishly, most Americans long ago embraced planning and zoning codes
-- and have given them little thought since -- on the assumption they
merely formalized what was common sense in the first place: "We
property owners mutually agree to build only residential developments
up here around the lake; those wishing to build a slaughterhouse or
aluminum smelter should locate it down by the railroad tracks."

But the bureaucrats can never leave it at that, can they? Year after
year they whine for bigger budgets, put their nephews and cousins on
the payroll as $50,000 "enforcement officers," generate ream after
ream of new "code and regulation" to keep everybody busy until shrub
placement is mandatory, and everything that isn't mandatory is
forbidden.

The nature of a thing is best judged by its fruit, and the evil fruit
of planning and zoning is a law-abiding family man like John Thoburn
sitting in prison while his wife and children flee the local
jurisdiction in terror, for all the world like terrified Lincolnshire
peasants fleeing the soldiers of Prince John.

The solution here is not merely to urge the Fairfax County Board of
Supervisors to back off in this particular case, while tens of
thousands of other American property owners see their rights and
freedoms similarly stripped away in slightly less outrageous
pick-and-rolls every day.

There is no compromise with creeping fascism -- defined by any decent
dictionary as an economic system in which private "owners" are
allowed to continue paying taxes on "their" property, while every
major decision about the use of that property is made by some
government functionary.

One does not solve the problem of "30 percent sewage in the drinking
water" by reducing the sewage level to 20 percent and announcing
"There: much better!" No, the solution here is to restore the
property rights which lay at the heart of the free-market system
which made ours the hardest-working, most prosperous nation in the
world. Every planning and zoning code in America must be abrogated
and repealed, just as we would hitch a tractor to the tail of a
rotting whale and haul it away from the beach where our children
swim.